Is the Defense of Marriage Act Doomed?

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For the second time a federal appeals court has ruled the 1996 Defense of Marriage Act is unconstitutional, ruling it violated the Equal Protection Clause by barring same-sex couples from legally marrying. While legal scholars, along with pro-gay activists, are celebrating their success, they are also concerned that the ruling may be too favorable and not be upheld by the U.S. Supreme Court.

The case the Second Circuit ruled on involved the deceased partner of a lesbian couple who was married in Canada in 2007 but lived in New York. The state did recognize their marriage as a legal union. When one of the women, Thea Spyer, died in 2009, her "wife," Edith Windsor, now 83, was prevented under Section 3 of DOMA from claiming an exemption for the federal estate tax available for surviving spouses because only couples of the opposite sex could qualify for the exemption.

The appeal court's ruling in essence said that Congress gave no good legal reason why homosexual couples should be treated any differently than heterosexual couples. It was Section 3 that the appeals court overturned.

But the question activists are now asking is: Is DOMA doomed or will the SCOTUS breathe new life into the 16-year-old law?

From a legislative perspective, Democrat lawmakers have introduced a bill called the Respect for Marriage Act that would overturn DOMA, calling it "immoral." The bill would eliminate the definition of marriage that says it is between one man and one woman, and it currently has over 90 sponsors.

Rep. Jerrold Nadler (D-N.Y.), the prime sponsor of the bill, said of the legislation, "This legislation would repeal the Defense of Marriage Act…which discriminated against lawfully married same-sex couples."

Those on the opposite side of the issue disagree. "Homosexual activists and their congressional supporters are making the outrageous claim that protecting marriage is a form of discrimination," said Shari Rendall, director of legislation and public policy with Concerned Women for America. "But the reverse is true – failing to protect marriage and overturning marriage laws will result in reverse discrimination against people who believe that marriage is between one man and one woman."

However, passage under a Republican controlled House is highly unlikely. That leaves the legal system as the most direct method of overturning DOMA.

As the law is currently written, each state has the right to regulate and define marriage as they so choose. So far more than 30 states have defined marriage as between a man and a woman. If the Supreme Court overturned DOMA, legal scholars warn that all states could then be forced to recognize same-sex marriage because federal law always supersedes state law.

Brian Raum of Alliance Defending Freedom, a legal organization dedicated to defending pro-family issues, says the true intent of the pro-gay activists is to force all states to recognize same-sex marriage.

"Many of those in favor of this bill argue that the repeal of the Defense of Marriage Act is not intended to force same-sex 'marriage' on all the states," Raum told Catholic News. "If that is not the intent, its supporters wouldn't be seeking to repeal the section of DOMA that makes it clear that states have a right to define marriage as the union of one man and one woman."

In September and before the Second Circuit Appeals Court decision, Justice Ruth Bader Ginsburg said she expected the issue to come before the court within the next year.

"I think it's most likely that we will have that issue before the court toward the end of the current term," she said.

The primary issue is will the Supreme Court Justices be willing to give homosexuals "protected status" such as those afforded to racial minorities?

One of the justices who pro-gay activists are hoping to count on is Justice Anthony Kennedy, who has previously written two opinions striking down laws favoring traditional marriage. Homosexual activists are afraid Kennedy could balk on giving homosexuals favored status.

Yet regardless of how the court will ultimately rule, Republican presidential nominee Mitt Romney's campaign has maintained their support of a federal marriage amendment despite a misunderstanding last week that the former Massachusetts governor was backing away from supporting an amendment.

"Governor Romney supports a federal marriage amendment to the Constitution that defines marriage as an institution between a man and a woman," said campaign advisor Bay Buchanan. "Governor Romney also believes, consistent with the 10th Amendment, that it should be left to states to decide whether to grant same-sex couples certain benefits, such as hospital visitation rights and the ability to adopt children. I referred to the Tenth Amendment only when speaking about these kinds of benefits – not marriage."

President Obama has never supported a federal marriage amendment and in May of this year came out in support of same-sex marriage. Several leading Black Ministers have criticized the president and gone as far as asking Black Christians to withhold their support until President Obama changes his position, which is highly unlikely.